New Zealand- Unsolicited Electronic Messages Act 2007
Public Act 2007 No 7
Date of assent 5 March 2007
The Parliament of New Zealand enacts as follows:
1. Title
This Act is the Unsolicited Electronic Messages Act 2007.
2. Commencement
This Act comes into force 6 months after the date on which it receives the Royal assent.
Part 1
Preliminary provisions
3. Purposes of this Act
The purposes of this Act are to-
(a) prohibit unsolicited commercial electronic messages with a New Zealand link from being sent, in order to-
(i) promote a safer and more secure environment for the use of information and communications technologies in New Zealand? and
(ii) reduce impediments to the uptake and effective use of information and communications technologies by businesses and the wider community in New Zealand? and
(iii) reduce the costs to businesses and the wider community that arise from unsolicited commercial electronic messages? and
(b) require commercial electronic messages to include accurate information about the person who authorised the sending of the message and a functional unsubscribe facility in order to enable the recipient to instruct the sender that no further messages are to be sent to the recipient? and
(c) prohibit address-harvesting software or a harvested-address list from being used in connection with sending unsolicited commercial electronic messages in contravention of this Act? and
(d) deter people from using information and communications technologies inappropriately.
4. Interpretation
(1) In this Act, unless the context otherwise requires,-
address-harvesting software means software that is capable of, or marketed for use for,-
(a) searching the Internet for electronic addresses? and
(b) collecting, compiling, capturing, or otherwise harvesting those electronic addresses
chief executive means the chief executive of the enforcement department
civil liability event has the meaning set out in section 18
commercial electronic message has the meaning set out in section 6
consented to receiving-
(a) means-
(i) express consent, whether given by the relevant electronic addressholder
or any other person who uses the relevant electronic address? or
(ii) consent that can reasonably be inferred from-
(A) the conduct and the business and other relationships of the persons concerned? and
(B) any other circumstances specified in the regulations? or
(iii) consent that is deemed to have been given when the following circumstances apply:
(A) an electronic address has been conspicuously published by a person in a business or official capacity? and
(B) the publication of the address is not accompanied by a statement to the effect that the relevant electronic address-holder does not want to receive unsolicited electronic messages at that electronic address? and
(C) the message sent to that address is relevant to the business, role, functions, or duties of the person in a business or official capacity? but
(b) does not include the circumstances specified in the regulations from which consent cannot be inferred
Court means, as appropriate, the District Court, the High Court, or either of them
electronic address means an address used in connection with-
(a) an email account? or
(b) an instant messaging account? or
(c) a telephone account? or
(d) a similar account
electronic message has the meaning set out in section 5
enforcement department means the department of State that, with the authority of the Prime Minister, is responsible for exercising the powers in Part 3
enforcement officer means a person who is appointed as an enforcement officer under section 21
goods has the same meaning as in section 2(1) of the Consumer Guarantees Act 1993
government body means-
(a) a department named in Part 1 of Schedule 1 of the Ombudsmen Act 1975:
(b) a Crown entity as defined in section 10(1) of the Crown Entities Act 2004
harvested-address list means-
(a) a list of electronic addresses? or
(b) a collection of electronic addresses? or
(c) a compilation of electronic addresses,-
where the production of the list, collection, or compilation is, to any extent, directly or indirectly attributable to the use of address-harvesting software
individual means a natural person, other than a deceased natural person
message means information, whether in-
(a) the form of text or writing? or
(b) the form of data? or
(c) the form of speech, music, or other sounds? or
(d) the form of visual images (animated or otherwise)? or
(e) any other form? or
(f) any combination of forms
mistake means a reasonable mistake of fact organisation includes-
(a) a corporation sole? and
(b) a body corporate? and
(c) an unincorporated body or association? and
(d) a partnership? and
(e) a government body? and
(f) a court or tribunal
person means-
(a) an individual? and
(b) an organisation
recipient, in relation to the sending of an electronic message to an electronic address, means-
(a) the relevant electronic address-holder? and
(b) any other person who uses that electronic address
regulations means regulations made under this Act relevant electronic address-holder means the person who is responsible for the relevant electronic address send includes an attempt to send service provider means a provider of a telecommunications service services has the same meaning as in section 2(1) of the Consumer Guarantees Act 1993 telecommunication has the same meaning as in section 5 of the Telecommunications Act 2001 telecommunications service means any goods, services, equipment, and facilities that enable or facilitate telecommunication unsolicited commercial electronic message means a commercial electronic message that the recipient has not consented to receiving.
(2) For the purposes of this Act, an electronic message has a New Zealand link if 1 or more of the following applies:
(a) the message originates in New Zealand:
(b) the person who sent the message is-
(i) an individual who is physically present in New Zealand when the message is sent? or
(ii) an organisation whose central management and control is in New Zealand when the message is sent:
(c) the computer, server, or device that is used to access the message is located in New Zealand:
(d) the recipient is-
(i) an individual who is physically present in New Zealand when the message is accessed? or
(ii) an organisation that carries on business or activities in New Zealand when the message is accessed:
(e) if the message cannot be delivered because the relevant electronic address does not exist, assuming that the electronic address existed, it is reasonably likely that the message would have been accessed using a computer, server, or device located in New Zealand:
(f) it is sent to an electronic address that-
(i) ends with “.nz” ? or
(ii) begins with an international access code directly followed by “64″.
Compare: Spam Act 2003 ss 4, 7, Sch 2 (Aust)? 2001 No 103 s 5
5 Meaning of electronic message
(1) For the purposes of this Act, an electronic message is a message sent-
(a) using a telecommunications service? and
(b) to an electronic address.
(2) However, the messages listed in clause 1 of the Schedule are not electronic messages.
(3) For the purposes of subsection (1), it is immaterial whether-
(a) the electronic address exists? or
(b) the message reaches its intended destination.
Compare: Spam Act 2003 s 5 (Aust)
6 Meaning of commercial electronic message For the purposes of this Act, commercial electronic message-
(a) means an electronic message that-
(i) markets or promotes-
(A) goods? or
(B) services? or
(C) land? or
(D) an interest in land? or
(E) a business or investment opportunity? or
(ii) assists or enables a person to obtain dishonestly a financial advantage or gain from another person? or
(iii) provides a link, or directs a recipient, to a message that does 1 or more of the things listed in subparagraphs (i) and (ii)? but
(b) does not include an electronic message that-
(i) provides a quote or estimate for the supply of goods or services if that quote or estimate was requested by the recipient? or
(ii) facilitates, completes, or confirms a commercial transaction that the recipient previously agreed to enter into with the person who authorised the sending of the message? or
(iii) provides warranty information, product recall information, or safety or security information about goods or services used or purchased by the recipient? or
(iv) provides notification of factual information about a subscription, membership, account, loan, or similar relationship involving the ongoing purchase or use by the recipient of goods or services offered by the person who authorised the sending of the message, or the recipients ongoing subscription, membership, account, loan, or similar relationship? or
(v) provides information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled? or
(vi) delivers goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously entered into with the person who authorised the sending of the message? or
(vii) provides the recipient with information about goods or services offered or supplied by-
(A) a government body? or
(B) a court or tribunal? or
(viii) has any other purpose set out in the regulations.
Compare: Spam Act 2003 s 6 (Aust)
